![]() Rule 26(a)(2) requires expert reports from retained experts. ![]() One important issue that lawyers must consider when assessing whether reliance on lay or expert opinions will be necessary in a particular case is the disclosure requirements in Federal Rule of Civil Procedure 26(a)(2) that apply to expert testimony. The court focused on the fact that the agent lacked firsthand knowledge sufficient to lay a foundation for a lay-witness opinion under Rule 701(a). The agent had provided voice identifications and substantive interpretations of the meaning of various statements contained in the calls. 2013), the Sixth Circuit Court of Appeals reversed and remanded a trial court’s decision to permit an FBI agent’s lay-witness testimony interpreting phone calls between codefendants. Taking a narrower view of Rule 701, the Sixth Circuit reached a different result in a case involving similar facts. 2011), the Eleventh Circuit permitted an FBI agent to testify as to the meaning of alleged code words used between codefendants even though the calls were predominantly in Arabic and the agent did not speak the language. Some courts take a broad view of lay-witness opinions. Various circuits have come to different conclusions regarding the scope of permissible lay-opinion testimony. Experts may testify “in the form of an opinion or otherwise”-it is entirely appropriate for an expert to testify generally about principles, methods, or other information and leave the ultimate inference or “opinion” to the finder of fact. Expert testimony, in contrast, is only permissible if a witness is “qualified as an expert by knowledge, skill, experience, training, or education” and the proffered testimony meets four requirements: (1) The expert’s scientific, technical, or other specialized knowledge will help the trier of fact to understand the evidence or to determine a fact in issue (2) the testimony is based on sufficient facts or data (3) the testimony is the product of reliable principles and methods and (4) the expert has reliably applied the principles and methods to the facts of the case. Under Rule 701, a lay witness may provide an opinion that is (1) rationally based on the witness’s perception (2) helpful to clearly understanding the witness’s testimony or to determining a fact in issue and (3) not based on scientific, technical, or other specialized knowledge within the scope of Rule 702. Courts throughout the country have come to different conclusions about the scope of permissible lay opinions and what constitutes expert testimony. ![]() However, the distinction between lay opinions and expert testimony is not a bright line. Merrell Dow Pharmaceuticals, Inc., 509 U.S. When testimony is “expert” in nature, it must comport with the stringent standards articulated by the U.S. The Federal Rules of Evidence governing lay opinions and expert testimony-Rules 701 and 702 respectively-set forth the standards for admissibility of both categories of evidence. ![]()
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